Offences Involving Cannabis


In Victoria, the maximum penalty for possession of cannabis is dependent on whether the court is satisfied that you were not in possession of a quantity of cannabis that is more than the small quantity applicable to cannabis and not for the purpose of trafficking.

If the court is satisfied that you did not possess the cannabis for trafficking purposes and it was not more than a small quantity, the maximum penalty is a fine up to 5 penalty units.

If the court is satisfied that you were in possession of the cannabis for trafficking purposes, the maximum penalty is a fine up to 400 penalty units or 5 years imprisonment.

The Offence of Possession Of Cannabis

The offence of possession of cannabis is contained in section 73 of the Drugs, Poisons and Controlled Substance Act 1981 which states:

‘A person who without being authorized by or licensed under this Act or the regulations or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act to do so has or attempts to have in his possession a drug of dependence is guilty of an indictable offence.’

Cannabis is listed as a drug of dependence in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981.

What is Possession?

Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 states that unless you can prove otherwise, you will be deemed to have cannabis in your possession where it is:

  • On your land or premises occupied by you; or
  • Used, enjoyed or controlled by you.

An individual is also deemed to be in possession of cannabis if they have physical control or custody of the cannabis to the exclusion of others.

What Actions Might Constitute “Possession of Cannabis”?

  • Having cannabis in your pocket;
  • Having cannabis in the glovebox in a vehicle which is being driven by you and is registered by you and no one else uses that vehicle;
  • Having cannabis in a backpack being used by yourself and not being used or accessed by anyone else.

What Police Need to Prove

To convict you of possession of cannabis, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • That the substance was in your possession; and
  • The substance was cannabis.

Traffic Cannabis

In Victoria, pursuant to section 71AC of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for Trafficking or Attempting to Traffick in cannabis is 15 years’ imprisonment. If the trafficking or attempt to traffick cannabis occurred at a school or within 500 metres of a school, the maximum penalty is 20 years’ imprisonment.

The Offence of Trafficking Cannabis

The offence of trafficking cannabis is contained in section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 which states:

‘A person who, without being authorised or licenced under this Act or the regulations or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence’.

What is Trafficking?

Under section 70 of the Drugs, Poisons and Controlled Substances Act 1981, ‘traffick’ in relation to cannabis includes:

  • Preparing cannabis for trafficking;
  • Manufacturing cannabis; or
  • Selling, exchange, agreeing to sell, offering for sale or having in possession for sale, cannabis.

This definition is not a complete list of all the acts that could amount to trafficking. The Courts have also defined trafficking to mean:

  • An activity performed in a commercial setting where it can be fairly inferred someone (not necessarily you) made a profit; or
  • That you participated in the progress of drugs from its source to the consumer.

What is a Traffickable Quantity?

Under section 70 of the Drugs, Poisons and Controlled Substances Act 1981, a ‘Traffickable Quantity’ of a drug of dependence is specified in Schedule 11 of the Act. The traffickable quantity for cannabis is 250 grams or 10 plants.

What Actions Might Constitute Trafficking Cannabis?

  • Selling cannabis to your friends; or
  • Having a traffickable quantity of cannabis in your backpack;

What Police Need to Prove

To convict you of Trafficking cannabis, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • You intentionally ‘trafficked’ or ‘attempted to traffick’ cannabis; and
  • That the substance was cannabis.

Trafficking Cannabis – Commercial Quantity

In Victoria, pursuant to section 71AA of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for Trafficking or Attempting to Traffick Cannabis – Commercial Quantity is 25 years’ imprisonment.

What is a Commercial Quantity?

Under section 70 of the Drugs, Poisons and Controlled Substances Act 1981, a ‘Commercial Quantity’ of a drug of dependence is specified in Schedule 11 of the Act. The commercial quantity for cannabis is 25 kilograms or 100 plants.

What Police Need to Prove

To convict you of Trafficking cannabis – Commercial Quantity, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • You intentionally ‘trafficked’ or ‘attempted to traffick’ cannabis;
  • That the substance was cannabis; and
  • That the substance that was cannabis was of a Commercial Quantity.

Trafficking Cannabis – Large Commercial Quantity

In Victoria, pursuant to section 71 of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for Trafficking or Attempting to Traffick cannabis – Large Commercial Quantity is life imprisonment and a maximum fine of 5000 penalty units.

What is a Large Commercial Quantity?

Under section 70 of the Drugs, Poisons and Controlled Substances Act 1981, a ‘Large Commercial Quantity’ of a drug of dependence is specified in Schedule 11 of the Act. The large commercial quantity for cannabis is 250 kilograms or 1000 plants.

What Police Need to Prove

To convict you of Trafficking in cannabis – Large Commercial Quantity, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • You intentionally ‘trafficked’ or ‘attempted to traffick’ cannabis; and
  • That the substance was cannabis; and
  • That the substance that was cannabis was of a Large Commercial Quantity.

Possible Defences for Trafficking Cannabis

The following are defences to trafficking cannabis.

Use Cannabis

Using cannabis is an offence under section 75 of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty is 5 penalty units.

What Constitutes ‘Use’?

Pursuant to section 70(1) of the Drugs, Poisons and Controlled Substances Act 1981 ‘use’ in relation to a drug of dependence means:

  • Smoke a drug of dependence;
  • Inhale the fumes caused by heating or burning a drug of dependence; or
  • Introduce a drug of dependence into the body of a person.

What The Police Must Prove

To convict you of using cannabis, the prosecution must prove beyond a reasonable doubt that you used or attempted to use cannabis.

Which Court Will Hear Your Matter?

An offence of using cannabis will be heard at the Magistrates’ Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

WHY CHOOSE ARMSTRONG LEGAL?

Armstrong Legal
Social Rating
4.5
Based on 271 reviews
×
Legal Hotline.
Open 7am - Midnight, 7 Days
Call 1300 038 223